Originally published by Francesca Blackard.
Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met. In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest. In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.
The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child. The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.
Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence. The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing. The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction. The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.
The process server testified regarding his attempts to serve the girlfriend.
The mother’s 15-year-old daughter testified the father’s girlfriend had contacted her on Instagram and made negative comments about her mother. The court allowed screenshots of the Instagram communications into evidence over the father’s objection that they were hearsay and had not been authenticated.
The mother testified the girlfriend had contacted her about her affair with the father. She alleged the girlfriend had posted nude photos of herself online and had made social media posts about marijuana and alcohol. She also testified the girlfriend and child got along well and she had no evidence that the girlfriend had ever harmed the child.
The father moved for rehearing after the court granted the “morality clause.” After the hearing, the trial court entered both a morality clause and an injunction. The morality clause provided that no unrelated person of the opposite sex in an intimate relationship with a parent could spend the night when the child was in that parent’s care. The permanent injunction enjoined the father from allowing the child to have any contact with his girlfriend.
The father appealed, arguing the injunction was not supported by proper evidence. He argued the trial court should have excluded the daughter’s testimony because she was not disclosed as a witness. Evidence that is not properly disclosed can generally not be admitted just to satisfy the interest of justice, but may be admitted if there is a good cause. The mother argued that the Instagram messages were sent during the week before the hearing, and this timing constituted good cause not to supplement the discovery responses before the hearing. The father argued he was unfairly surprised and prejudiced. Some Texas appeals courts have held a trial court should admit testimony despite unfair surprise or lack of good cause for a delay in disclosure if admission of the evidence is in the best interest of the child. Based on this standard, the appeals court found no abuse of discretion in the admission of the daughter’s testimony.
The appeals court also rejected the father’s argument that the Instagram messages should have been excluded as hearsay. A statement is only hearsay if it is offered to prove the truth of the matter asserted. The messages were not presented to prove the truth of the matter asserted. The mother presented the negative statements about her not to prove they were true, but to show the communications had been made. The communications were therefore not hearsay.
The father also argued there was not sufficient evidence to support a permanent injunction. Generally, to get a permanent injunction, a party must show there is a wrongful act, imminent harm, irreparable injury, and no adequate remedy at law. In child custody cases, however, a court may grant a permanent injunction that is in the best interest of the child even if all of these elements are not met. The appeals court found no abuse of discretion in the trial court’s granting of the permanent injunction upon finding it was in the child’s best interest.
The father also argued that there was insufficient evidence to support the injunction. The appeals court noted that sufficiency of the evidence was not an independent ground to overturn the injunction. It is instead a factor in determining whether the trial court abused its discretion.
The mother’s daughter testified the father’s girlfriend made negative comments about the mother and the screenshots she provided reflected the nature of those messages. The trial court could have found the child was at risk of being exposed to similar comments as those directed at her 15-year-old half-sister. The mother had also testified she had spoken to the father about the girlfriend’s drug-related posts, and he indicated he was aware of her drug use. The trial court could have found the girlfriend had used illegal drugs, that the father was aware of it, and that he was not opposed to the drug use. The trial court also could have found the girlfriend presented a risk of promoting parental alienation. The trial court could therefore have found that it was not in the child’s best interest to allow contact with the girlfriend. The appeals court found no abuse of discretion in the issuance of the permanent injunction and affirmed the judgment.
If you are involved in a child custody matter, a skilled Texas custody attorney can help pursue any necessary court orders. Set up an appointment with McClure Law Group by calling 214.692.8200.